Com. v. Colon-Cruz, D. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DIMAS COLON-CRUZ
Appellant No. 439 WDA 2016
Appeal from the Order March 1, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002778-2015
BEFORE: OLSON, SOLANO and STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED JUNE 28, 2017
Appellant, Dimas Colon-Cruz, appeals from the order entered on March
1, 2016, dismissing his petition for writ of habeas corpus, which challenged
the Commonwealth’s ability to establish a prima facie case of witness
intimidation,1 based solely on hearsay evidence, at Appellant’s preliminary
hearing. We quash the appeal as interlocutory.
The trial court summarized the facts and procedural history of this
case as follows:
[Appellant] was charged by Officer Cheryl Frey of the Erie
Police Department with one count of [i]ntimidation of a
[v]ictim/[w]itness, a third degree felony. In the [c]riminal
[c]omplaint, Officer Frey informed [Appellant] the charge
was based on alleged statements and/or threats to his
neighbor, Jennifer Keller, to not testify in a case involving
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1
18 Pa.C.S.A. § 4952(a)(1).
* Retired Senior Judge assigned to the Superior Court.
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Dawaun Carson. In fact, Jennifer Keller did testify at a
preliminary hearing involving Dawaun Carson during which
[Appellant] allegedly made additional verbal and/or
non-verbal threats to Keller. Following the preliminary
hearing for Carson, Officer Frey filed the within charge.
At a preliminary hearing held in this case on October 1,
2015, Jennifer Keller did not appear to testify. As a result,
the Commonwealth adduced the testimony of Officer Frey
who outlined the statement given to her by Jennifer Keller
as set forth in the [c]riminal [c]omplaint. Over [Appellant’s]
objections, the charge was bound over to court.
Trial Court Opinion, 3/1/2016, at 1. On February 9, 2016, Appellant filed an
omnibus pre-trial motion and accompanying memorandum of law in support.
At issue herein, Appellant sought habeas corpus relief arguing the
Commonwealth violated his constitutional rights to confront adverse
witnesses and due process because the Commonwealth relied solely on
hearsay testimony at the preliminary hearing. By order entered on March 1,
2016, the trial court denied relief. This appeal resulted.2
On appeal, Appellant raises the following issues for our review:
A. Whether exceptional circumstances exist to warrant
appellate review of the denial of [Appellant’s] [w]rit of
[h]abeas [c]orpus which contested the Commonwealth’s
use of only hearsay testimony as the sole basis to
support its prima facie case at the preliminary hearing.
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2
Appellant filed a timely notice of appeal on March 28, 2016. On March
28, 2016, the trial court entered an order directing Appellant to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied on April 11, 2016. The trial court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on April 20, 2016.
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B. Whether hearsay testimony by the affiant is legally
sufficient to establish a prima facie case at the
preliminary hearing when it is the only evidence
presented.
Appellant’s Brief at 3-4.
Appellant argues that the hearsay testimony of the investigating police
officer, standing alone, is insufficient to establish a prima facie case against
him since such a procedure violates his constitutional rights to due process
and to confront adverse witnesses. Initially, we must determine whether we
have jurisdiction over this appeal. “In this Commonwealth, an appeal may
only be taken from: 1) a final order or one certified by the trial court as
final; 2) an interlocutory order as of right; 3) an interlocutory order by
permission; or 4) a collateral order.” Commonwealth v. Ivy, 146 A.3d 241,
255 (Pa. Super. 2016) (internal citation omitted). “Generally, the denial of
a pre-trial writ of habeas corpus based on a lack of sufficient prima facie
evidence does not constitute an appealable order.”3 Commonwealth v.
Ricker, 120 A.3d 349, 353 (Pa. Super. 2015). In Ricker, the defendant
raised a claim similar to the one presented herein, arguing exclusive reliance
upon hearsay evidence at a preliminary hearing violated a defendant’s right
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Here, Appellant concedes that the order he appeals from is interlocutory.
Appellant’s Brief at 1. Upon review of the record, Appellant did not seek
permission from the trial court to appeal nor does Appellant contend that his
interlocutory order is permitted statutorily as of right. Instead, he argues
that exceptional circumstances warrant our review. Id. For the reasons
that follow, we disagree.
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to confront witnesses. We accepted the interlocutory order, because the
issue was one of first impression in the Commonwealth and exceptional
circumstances warranted it. We determined the issue was capable of
evading review and presented “an important constitutional question
regarding whether a powerful state governmental entity violates federal and
state constitutional principles in allowing a defendant to be restrained of his
liberty and bound over for trial based solely on hearsay evidence.” Id. at
354. After examining Pa.R.Crim.P. 542(E),4 the historical underpinnings of
the preliminary hearing, the Pennsylvania and federal confrontation clauses,
and applicable case law, “we [found] that an accused does not have the
right to confront the witnesses against him at his preliminary hearing[.]”
Id. at 362.
On April 18, 2016, the Pennsylvania Supreme Court granted a petition
for allowance of appeal in Ricker. See Commonwealth v. Ricker, 135
A.3d 175 (Pa. 2016). To date, however, no decision has been forthcoming.
“It is beyond the power of a Superior Court panel to overrule a prior decision
of the Superior Court, except in circumstances where intervening authority
by our Supreme Court calls into question a previous decision of this Court.”
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4
“Hearsay as provided by law shall be considered by the issuing authority in
determining whether a prima facie case has been established. Hearsay
evidence shall be sufficient to establish any element of an offense, including,
but not limited to, those requiring proof of the ownership of, non-permitted
use of, damage to, or value of property.” Pa.R.Crim.P. 542(E).
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Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006) (internal
citations omitted). At this point in time, our Supreme Court has only
granted an appeal for the purpose of determining whether a defendant has a
right to confront witnesses at his preliminary hearing or if a prima facie case
may be proven by the Commonwealth through hearsay evidence alone.
Because our Supreme Court has not yet ruled upon Ricker’s declaration that
challenges such as the present one involve appealable matters or the issue
of whether the Commonwealth may rely solely on hearsay evidence to
establish its prima facie case at a preliminary hearing, our Court's prior
decision in Ricker is binding and Appellant is not entitled to appellate
review. As such, Appellant has not shown exceptional circumstances to
accept his otherwise interlocutory appeal.
As noted above, Appellant also argues, in the alternative, that the use
of hearsay alone at his preliminary hearing violates his fundamental right to
due process. Appellant’s Brief at 13-20. For this proposition, Appellant
relies primarily on our Supreme Court’s plurality decision in
Commonwealth ex. rel. Buchanon v. Verbonitz, 581 A.2d 172 (Pa.
1990). We have recently addressed this identical due process claim,
specifically examining Verbonitz, in our published decision in
Commonwealth v. McClelland, -- A.3d --, 2017 WL 2312083 (Pa. Super.
2017). In McClelland, similar to Ricker, we first addressed whether we
had jurisdiction, recognizing that generally “the denial of a pretrial writ of
habeas corpus claiming a lack of sufficient evidence is not an appealable
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order.” McClelland at *1. We then determined that Ricker left unresolved
whether it was a violation of fundamental due process rights when the
Commonwealth relies solely upon hearsay evidence at a preliminary hearing.
Because we had yet to address this important constitutional question, we
found that exceptional circumstances warranted review of an otherwise
interlocutory order. Id. Ultimately, in McClelland, we determined there
was no violation of due process where, at his preliminary hearing, McClelland
had the ability to cross-examine the primary investigator about statements
made to him by the victim. In this case, at Appellant’s preliminary hearing,
the Commonwealth presented the testimony of the police officer who took
the alleged victim’s purported statement, which then formed the basis for
the criminal charges against Appellant. Thus, McClelland previously
addressed (and rejected) the identical due process argument Appellant
advances sub judice. Accordingly, Appellant has not presented exceptional
circumstances warranting our review of his separate due process challenge.
For all the foregoing reasons, we lack jurisdiction to entertain the appeal of
this interlocutory order.
Appeal quashed.
Strassburger, J. joins this memorandum.
Solano, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2017
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